Chicago-Kent Law Review Chicago-Kent Law Review

Volume 56 Issue 3 Article 12

October 1980

Section 1983 and the Limits of Prosecutorial Immunity Section 1983 and the Limits of Prosecutorial Immunity

Mary Rose Strubbe

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Recommended Citation Recommended Citation Mary R. Strubbe, Section 1983 and the Limits of Prosecutorial Immunity , 56 Chi.-Kent L. Rev. 1029 (1980). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol56/iss3/12

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SECTION 1983 AND THE LIMITS OF PROSECUTORIALIMMUNITY

Hampton v. Hanrahan

600 F.2d 600 (7th Cir. 1979), cert. denied,48 U.S.L.W. 3780 (U.S. June 2, 1980)

Section 1 of the Civil Rights Act of 1871, presently codified at 42U.S.C. § 1983,' permits any individual to bring a civil action for dam-ages2 against any person who, acting under color of state law,3 deprivedthe individual of rights secured by the United States Constitution andlaws. The language of the statute appears to apply without exception toall persons acting under color of state law, regardless of their officialposition. In 1951, however, the United States Supreme Court, in Ten-ney v. Brandhove,4 concluded that Congress had not intended that sec-tion 1983 should abrogate official immunities "well grounded in historyand reason.' 5

In Tenney, the Supreme Court found an absolute immunity fromsection 1983 damages liability for state legislators acting in a traditionallegislative capacity.6 The Supreme Court later held judges to be abso-lutely immune from section 1983 damages liability for acts performedwithin their judicial jurisdiction.7 In 1mbler v. Pachtman,8 the Supreme

1. 42 U.S.C. § 1983 (1976) [hereinafter referred to and cited as section 19831 states:Every person who, under color of any statute, ordinance, regulation, custom or usage, ofany State or Territory, subjects, or causes to be subjected, any citizen of the United Statesor other person within the jurisdiction thereof to the deprivation of any rights, privileges,or immunities secured by the Constitution and laws, shall be liable to the party injuredin an action at law, suit in equity, or other proper proceeding for redress.2. Section 1983 also provides for equitable relief. See S. NAHMOD, CIVIL RIGHTS & CIVIL

LIBERTIES LITIGATION ch. 5 (1979) [hereinafter cited as NAHMOD].3. The United States Supreme Court has held that the "under color" of state law require-

ment contained in section 1983 is the same as the state action required under the fourteenthamendment. United States v. Price, 383 U.S. 787, 794 n.7 (1966).

4. 341 U.S. 367 (1951).5. Id at 376.6. Id at 379. Absolute immunity also has been extended to regional legislators. Lake

Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979).Absolute immunity as conferred in Tenney, Pierson v. Ray, 386 U.S. 547 (1967), and Imbler

v. Pachtman, 424 U.S. 409 (1976), includes only immunity from damages liability. Injunctive ordeclaratory relief is still available to the successful section 1983 plaintiff. Briggs v. Goodwin, 569F.2d 10, 15 n.4 (D.C. Cir. 1977); NAHMOD, supra note 2, at 191, 216.

7. Stump v. Sparkman, 435 U.S. 349 (1978); Pierson v. Ray, 386 U.S. 547 (1967). TheSupreme Court in Sparkman reiterated the distinction between acts in excess of jurisdiction andthe clear absence of all jurisdiction. Only in the clear absence of all jurisdiction, the Court held,will a judge lose his absolute immunity. For a general discussion ofjudicial immunity, see Rosen-berg, Stump v. Sparkman.- The Doctrine ofJudicial Impunity, 64 VA. L. REV. 833 (1978); Note,

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Court extended absolute immunity to prosecuting attorneys but ex-pressly limited the immunity to a prosecutor's actions in connectionwith his advocacy function.9 Imbler did not define the precise limits ofthe advocacy function, 10 and left open the issue of whether absoluteimmunity attached to a prosecutor's other functions."

Hampton v. Hanrahan 12 presented the United States Court of Ap-peals for the Seventh Circuit with an opportunity to delineate the outerlimits of a prosecuting attorney's absolute immunity from liability fordamages under section 1983. The Seventh Circuit dealt with a complexfactual situation in Hampton. ' 3 The litigation which led to the SeventhCircuit's decision was protracted,' 4 often sensational, and legally signif-icant in several respects.' 5

This comment will address only the issue in Hampton of the exten-sion of immunity to prosecutors and federal officials in section 1983suits for damages. First, the comment will examine the development ofsection 1983 immunities and the difficulties that the multiple roles of aprosecuting attorney present in determining the parameters ofprosecutorial immunity. Next, the relevant factual and legal back-ground of Hampton will be examined. This comment will then assessthe Seventh Circuit's immunity analysis in Hampton and show that thecourt correctly refused to extend absolute immunity to federal law en-forcement officials, and to a state prosecutor's "publicity campaigns"

Immunity of Federal and State Judges from Civil Suit-Timefor a Qualyied Immunity;, 27 CASEW. RES. L. REV. 727 (1977) [hereinafter cited as Immunily of Federal and State Judges].

8. 424 U.S. 409 (1976).9. Id at 430-31. See text accompanying notes 51-59 infra.

10. 424 U.S. at 431 n.33.11. ld at 430-31. Unlike legislators and judges, a prosecutor performs many functions, in-

cluding investigation, prosecution, administration, and direction of law enforcement. Id SeeNAHMOD, supra note 2, at 220-24; Note, Delimiting the Scope of Prosecutorial Immunityfrom Sec-tion 1983 Damage Suits, 52 N.Y.U. L. REV. 173, 187-88 (1977) [hereinafter cited as Delimiting theScope of Prosecutorial Immunity].

12. 600 F.2d 600 (7th Cir. 1979), cert. denied, 48 U.S.L.W. 3780 (U.S. June 2, 1980). TheUnited States Supreme Court denied certiorari on all issues except the attorney's fees awarded tothe plaintiffs by the Seventh Circuit. The Court, in a per curiam opinion, reversed the award ofattorney's fees, holding that the plaintiffs were not a "prevailing party" within the meaning of theCivil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 (1976). 48 U.S.L.W. at 3780.Justice Powell, joined by Justices Burger and Rehnquist, dissented from the denial of certiorari asto the federal defendants. Justice Marshall dissented from the summary reversal of the attorney'sfee award, arguing that the issue merited the plenary attention of the Court. Id. at 3783.

13. See text accompanying notes 70-99 infra.14. The first complaints were filed in 1970. See text accompanying notes 100-07 infra.15. The Seventh Circuit dealt extensively with the prima facie elements of conspiracy, and

with such issues as the disclosure of informants' identities, imposition of sanctions against defend-ants and their counsel, the permissible scope of discovery, attorneys' fees, and contempt judgmentsimposed on two of plaintiffs' attorneys.

NOTES AND COMMENTS

and participation in planning police raids. 16 Finally, this comment willdemonstrate that the Seventh Circuit's extension of immunity to theprosecuting attorney's actions in connection with the Chicago PoliceDepartment's internal investigation was incorrect.

SECTION 1983 AND IMMUNITY

Historical Background

Many of the "persons" who are potential defendants in section1983 actions were immune from suit for their official activities at com-mon law. 17 Despite the absolute language of section 1983, the UnitedStates Supreme Court has extended this traditional immunity to section1983 suits for damages, holding many officials either absolutely orqualifiedly immune.1 8

Legislative immunity was firmly entrenched at common law 19 andlegislators were the first officials to be granted absolute immunity fromsection 1983 damages liability, in Tenney v. Brandhove.20 Sixteen yearslater, in Pierson v. Ray,21 the Supreme Court extended absolute immu-

16. 600 F.2d at 631-33.17. See, e.g., Gravel v. United States, 408 U.S. 606 (1972) (legislators); Spalding v. Vilas, 161

U.S. 483 (1896) (executive officials); Kilbourn v. Thompson, 103 U.S. 168 (1880) (legislators);Bradley v. Fisher, 80 U.S. 335 (1872) (judges); Briggs v. Goodwin, 569 F.2d 10, 27 (D.C. Cir. 1977)(witnesses); Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), cert. denied, 339 U.S. 949 (1950)(prosecuting attorneys); Yaselli v. Goff, 12 F.2d 396, 399, 403 (2d Cir. 1926), aff'dper curiam, 275U.S. 503 (1927) (grand jurors, witnesses, and prosecuting attorneys); Griffith v. Slinkard, 146 Ind.117, 44 N.E. 1001 (1896) (grand jury and prosecuting attorneys); Stockdale v. Hansard, 9 Ad. &El. 1, 113-14, 112 E.R. 1112, 1155-56 (1839) (legislators); Agard v. Wilde, J. Brdg. 130, 123 E.R.1251, 1252 (1617) (grand jurors).

18. See, e.g., Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391(1979) (regional legislators held to have absolute immunity from section 1983 actions for dam-ages); Procunier v. Navarette, 434 U.S. 555 (1978) (state prison officials held to have qualifiedimmunity in section 1983 actions for damages); Imbler v. Pachtman, 424 U.S. 409 (1976) (prose-cuting attorney held to have absolute immunity from section 1983 actions for damages in initiat-ing a prosecution and presenting the State's case); Wood v. Strickland, 420 U.S. 308 (1975) (schoolofficials and school board held to have qualified immunity in section 1983 actions for damages);Scheuer v. Rhodes, 416 U.S. 232 (1974) (governor and executive officials of a state held to havequalified immunity in section 1983 claims for damages); Pierson v. Ray, 386 U.S. 547 (1967) (statejudges held to have absolute immunity from section 1983 actions for damages; local police officersheld to have qualified immunity in section 1983 actions for damages); Tenney v. Brandhove, 341U.S. 367 (1951) (state legislators held to have absolute immunity from section 1983 actions fordamages). For an explanation of the difference between absolute and qualified immunity, see textaccompanying notes 40-42 infra.

19. See Tenney v. Brandhove, 341 U.S. 367, 372-76 (1951); U.S. CONST. art. I, § 6; J. No-WAK, R. ROTUNDA & J. YOUNG, CONSTITUTIONAL LAW 236-38 (1978).

20. 341 U.S. 367 (1951). Brandhove charged that the contempt proceedings instituted againsthim by the California Senate after he refused to testify before the Tenney committee were anattempt to prevent his exercise of his first amendment rights. The Supreme Court held that section1983 created no liability for conduct by legislators in an area where they had traditional power toact.

21. 386 U.S. 547 (1967). Plaintiffs in Pierson were a group of white and black clergymen who

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nity from section 1983 damages liability to state judges. Both the Ten-ney and Pierson opinions relied heavily on the historical immunity oflegislators and judges.22

The immunity of federal officials from suit is based on a separateline of cases. In Spalding v. Vilas,23 the United States Postmaster Gen-eral was sued for circulating a notice which allegedly injured the plain-tiffs reputation. The Supreme Court held that even a malicious motivewould not render the Postmaster General liable in damages for injurycaused by an official act that otherwise was within the scope of his au-thority. 24 Barr v. Matteo,25 involving a suit against the director of agovernment agency for malicious defamation, reaffirmed this holdingas to federal officials. In Butz v. Economou,26 however, the SupremeCourt held that the immunity established in Spalding and Barr did notprotect a federal official acting in an executive capacity who violated astatutory or constitutional limitation on his authority.2 7 The Court rea-soned that in suits for alleged violations of constitutional rights therewas no basis for extending greater immunity from liability to federalofficials than was extended to their state counterparts in section 1983cases.28 State executive officers had been held to have only a qualifiedgood faith immunity in Scheuer v. Rhodes.29 The Court extended theScheuer standard to school administrators in Wood v. Strickland,30 andto prison officials in Procunier v. Navarelte.31 The Butz Court appliedthis same qualified, good faith immunity to federal officials performingcomparable functions.32 Federal officials performing adjudicatory

were arrested when attempting to use a segregated bus terminal waiting room in Mississippi in1961. The clergymen were convicted by a municipal police justice; on appeal to the county court,the charges were dropped. The clergymen then sued under section 1983 the police judge and theofficers who arrested them. The Supreme Court held that a judge was not liable under section1983 even for an unconstitutional conviction.

22. See id at 553-55; 341 U.S. at 372-76.23. 161 U.S. 483 (1896).24. Id at 498.25. 360 U.S. 564 (1959).26. 438 U.S. 478 (1978). The plaintiff in Butz sued the Secretary of Agriculture and other

federal officials, alleging that by instituting unauthorized proceedings to suspend the registrationof his commodity futures commision company the department had violated his constitutionalrights. The Supreme Court held that federal officials were not absolutely immune from liabilityfor a willful or knowing violation of plaintiffs constitutional rights.

27. Id. at 495. The plaintiffs in Barr alleged defamation, whereas in Butz the plaintiff al-leged constitutional deprivations. The Court viewed the distinction as crucial.

28. Id at 500. The Court excluded "exceptional situations where it is demonstrated thatabsolute immunity is essential for the conduct of the public business." Id. at 507.

29. 416 U.S. 232 (1974).30. 420 U.S. 308 (1975).31. 434 U.S. 555 (1978).32. 438 U.S. at 508.

NOTES AND COMMENTS

functions or functions analogous to those of a state prosecutor in initi-ating and presenting a case, on the other hand, were held to be entitledto absolute immunity because their state counterparts were immune. 33

The most frequently noted reason for extending immunity fromsection 1983 damage suits is that the immunity is necessary to protectthe official's decision making process. 34 Yet to extend absolute immu-nity to all state officials would negate the very remedy which Congresssought to create through section 1983. 35 Thus, the Supreme Court hasextended absolute immunity only upon a convincing showing that theimmunity serves an important public interest.36 While the early immu-nity cases gave great weight to the official's immunity at common law,the analysis in later cases concentrated on the effect that threat of suitwould have on the official's performance of his or her duties.37 In atleast one situation, that of high ranking government executives, theSupreme Court refused to extend absolute immunity in section 1983cases,3 8 even though such immunity existed at common law.39

The procedural difference between absolute and qualified immu-nity is significant. Absolute immunity defeats a suit at the outset if theofficial's actions were within the scope of his authority.40 The official'sintent and the legality of his acts are irrelevant.4' An official who hasonly a qualified immunity, however, must establish at trial that he ac-ted with a good faith belief in the constitutionality or legality of hisaction and that the belief was reasonable under the circumstances. 42

33. Id at 513.34. See, e.g., Imbler v. Pachtman, 424 U.S. 409, 435 (1976). The Court in Scheuer reasoned

that the immunity of government officers rested on two mutually dependent rationales: the injus-tice, particularly in the absence of bad faith, of subjecting an officer to liability where his positionrequires him to exercise discretion; and the danger that the threat of liability would deter theofficer's willingness to exercise his office with the decisiveness and judgment required by the pub-lic good. 416 U.S. at 240.

35. Imbler v. Pachtman, 424 U.S. 409, 434 (1976) (White, J., concurring). For an argumentadvocating a literal interpretation of section 1983's "every person" language, see Pierson v. Ray,386 U.S. 547, 558-67 (1967) (Douglas, J., dissenting); Immunily of Federal and State Judges, SUpranote 7, at 737-40.

36. See, e.g., Imbler v. Pachtman, 424 U.S. 409, 435-37 (1976) (White, J., concurring).37. See, e.g., Procunier v. Navarette, 434 U.S. 555 (1978); Wood v. Strickland, 420 U.S. 308

(1975); Scheuer v. Rhodes, 416 U.S. 232 (1974).38. Scheuer v. Rhodes, 416 U.S. 232 (1974).39. Imbler v. Pachtman, 424 U.S. 409, 434 (1976) (White, J., concurring); Barr v. Matteo, 360

U.S. 564 (1959); Spalding v. Vilas, 161 U.S. 483 (1896).40. Imbler v. Pachtman, 424 U.S. 409, 419 n.13 (1976). See Comment, Section 1983, Immu-

nity, and the Public Defender. The Misapplication of 1mbler v. Pachtman, 55 CHI.-KENT L. REV.477, 482-83 (1979); Delimiting the Scope of Prosecutorial Immunity, supra note 11, at 174.

41. See, e.g., Imbler v. Pachtman, 424 U.S. 409, 418 (1976); Pierson v. Ray, 386 U.S. 547,553-54 (1967).

42. Imbler v. Pachtman, 424 U.S. 409,419 n.13 & 14 (1976); Scheuer v. Rhodes, 416 U.S. 232,247-48 (1974). See NAHMOD, upra note 2, at ch. 8 for a general discussion of qualified immunity.

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Prosecutorial Immunity

Historically, the exercise of quasi-judicial discretion by an officialwas one of the major criteria courts used in determining whether theofficial should be immune from suit.43 In Gregoire v. Biddle,4 theUnited States Court of Appeals for the Second Circuit summed up thereasoning behind this immunity: "[I]t has been thought in the end bet-ter to leave unredressed the wrongs done by dishonest officers than tosubject those who try to do their duty to the constant dread of retalia-tion."

4 5

In Yaselli v. Goff,46 an early federal case which refers to "quasi-judicial" immunity, the Second Circuit examined the history of immu-nity in Anglo-American law and concluded that a Special Assistant tothe Attorney General of the United States was immune from civil suitfor malicious prosecution, 47 regardless of the existence of malice on hispart,48 or of the fact that the initial case against the plaintiff had re-sulted in a jury verdict of not guilty.49 Most appellate courts adoptedthis position. °

The United States Supreme Court addressed the section 1983 im-munity of the prosecutor in Imbler v. Pachtman.5 I The Court held thata state prosecuting attorney who acted within the scope of his duties ininitiating and pursuing a criminal prosecution was absolutely immunefrom suit under section 1983 for alleged deprivations of constitutionalrights.5 2 Imbler sued the state prosecutor who had successfully prose-cuted him for murder,5 3 alleging that the prosecutor knowingly usedperjured testimony and suppressed material evidence.54

43. Spalding v. Vilas, 161 U.S. 483, 498 (1896); Yaselli v. Goff, 12 F.2d 396 (2d Cir. 1926),aff'dper curiam, 275 U.S. 503 (1927).

44. 177 F.2d 579 (2d Cir. 1949).45. Id at 581.46. 12 F.2d 396 (2d Cir. 1926), aff'dper curiam, 275 U.S. 503 (1927).47. 12 F.2d at 399-405. The court stated that a United States Attorney exercises important

judicial functions and performs much the same role as a grand jury in deciding whether a particu-lar prosecution should be instituted or followed up. If a prosecuting attorney knows that he mayhave to defend an action for malicious prosecution in case of a failure to convict, his decision maybe influenced by that consideration. Id at 404.

48. Id at 406.49. Id at 398.50. See, e.g., Grow v. Fisher, 523 F.2d 875, 877 (7th Cir. 1975); Bethea v. Reid, 445 F.2d

1163, 1166 (3d Cir. 1971); Robichaud v. Ronan, 351 F.2d 533, 536 (9th Cir. 1965); Gregoire v.Biddle, 177 F.2d 579, 580 (2d Cir. 1949). See W. PROSSER, HANDBOOK OF THE LAW OF TORTS837 (4th ed. 1971).

51. 424 U.S. 409 (1976).52. Id at 430-3 1.53. Imbler had been freed by a federal district court after filing a habeas corpus petition. Id

at 415-16.54. Id at 415.

NOTES AND COMMENTS

The Supreme Court noted in Imbler that the historical immunityof a prosecutor is based on the same policies that underlie the tradi-tional immunities of judges and grand jurors acting within the scope oftheir duties. 55 The Court concluded that these public policy considera-tions warranted absolute immunity for prosecutors under section 1983as well.56 These considerations include concern that harrassment byunfounded litigation would deflect the prosecutor's energies from hisduties and the possibility that threat of suit would influence the prose-cutor to shade his decisions rather than exercise independent judg-ment. 57 The holding in 1mbler was expressly limited to situations inwhich the alleged misconduct of the prosecutor occurred as part of theinitiation of a prosecution or the presentation of the State's case. 58 TheCourt did not decide whether those aspects of a prosecutor's responsi-bilities which cast him in the role of administrator or investigator,rather than advocate, require immunity.59

Justice White concurred in the Imbler holding that a prosecutor isabsolutely immune from suit for damages under section 1983 for know-ing use of perjured testimony in the presentation of the government'scase.60 He disapproved, however, of the majority decision in 1mbler toextend to the prosecutor a broader immunity from section 1983 damagesuits than the common law immunity from malicious prosecution anddefamation suits.6 ' Justice White disagreed with the majority opinion

55. Id at 422-23. The Court pointed out that some courts have remarked on the fact thatjudges, grand jurors, and prosecutors all exercise discretionary judgment on the basis of evidencepresented to them. Id at 423 n.20.

56. Id at 424.57. Id at 423. As Justice White pointed out in his concurring opinion in 1mbler, no one will

sue a prosecutor for an erroneous decision not to bring charges. If suits for malicious prosecutionwere permitted, the prosecutors' inclination would always be to not bring charges. Id at 438(White, J., concurring).

The Court listed additional reasons for applying the common law immunity to section 1983suits: 1) the danger that suits which survived a pleadings challenge would pose to an honestprosecutor; 2) the danger of virtual retrial of criminal offenses in the section 1983 suit; 3) theadverse effect on the criminal justice system that limiting the prosecutor's discretion in conductingthe trial and presenting the evidence could have; and, 4) the availability of other remedies todiscipline prosecutors who abuse their discretion. Id at 424-27.

58. Id at 431.59. Id at 430. In a footnote the Court said:We recognize that the duties of the prosecutor in his role as advocate for the State in-volve actions preliminary to the initiation of a prosecution and actions apart from thecourtroom. . . . Preparation, both for the initiation of the criminal process and for atrial, may require the obtaining, reviewing, and evaluating of evidence. At some point,and with respect to some decisions, the prosecutor no doubt functions as an administra-tor rather than as an officer of the court. Drawing a proper line between these functionsmay present difficult questions, but this case does not require us to anticipate them.

Id at 431 n.33.60. Id. at 440 (White, J., concurring).61. Id at 441.

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insofar as it implied an absolute immunity from suits for constitutionalviolations other than those based on the prosecutor's decision to initiateproceedings or his actions in bringing information or argument to thecourt.62 He emphasized his particular disapproval of extending abso-lute immunity to the prosecutor in suits charging unconstitutional sup-pression of evidence. 63 Such an extension of immunity, Justice Whitereasoned, would injure the judicial process and interfere with Congress'purpose in enacting section 1983.64

The Supreme Court's analysis in 1mbler addressed the prosecu-tor's immunity in his role as advocate. 65 The Court recognized that thelines between advocacy, administration, and investigation are not al-ways clear.66 The two-part question still unresolved after Imbler waswhether the administrative or investigative functions of the prosecutoralso were entitled to immunity67 and where the line separating advo-cacy from investigation or administration should be drawn.68 The Sev-enth Circuit addressed these questions in Hampton v. Hanrahan.69

HAMPTON v HANiAIHAN

Facts and Procedure

On December 4, 1969, fourteen Chicago police officers detailed tothe Special Prosecution Unit70 of the Cook County State's Attorney'sOffice raided an apartment occupied by nine members of the BlackPanther Party. The officers were equipped with a search warrant for

62. Id63. Id The absolute immunity traditionally extended to prosecutors in defamation cases is

designed to encourage them to bring information to the court which will resolve the case. "Itwould stand this immunity rule on its head, however, to apply it to a suit based on a claim that theprosecutor unconstitutionally withheld information from the court." Id at 442-43 (emphasis inoriginal).

64. Id at 433. The majority in 1mbler reasoned that as a practical matter, distinguishingknowing use of perjured testimony from the deliberate withholding of exculpatory informationwould be impossible. Because of the difficulty in distinguishing the two, the majority reasonedthat denying absolute immunity to suppression claims would eviscerate the absolute immunityextended to claims of using perjured testimony. Id at 431 n.34.

65. Id. at 430-3 1.66. Id at 431 n.33.67. The courts which have considered this question appear to be answering it negatively.

See, e.g., Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir. 1979); Briggs v. Goodwin, 569 F.2d 10(D.C. Cir. 1977), cert. denied, 437 U.S. 904 (1978).

68. See, e.g., Henzel v. Gerstein, 608 F.2d 654 (5th Cir. 1979); Helstocki v. Goldstein, 552F.2d 564 (3d Cir. 1977); Hall v. Flathead County Attorney, 478 F. Supp. 644 (D. Mont. 1979). SeeNAHMOD, supra note 2, at 218-26 for a thorough discussion of Zmbler and the questions stillunanswered after the decision.

69. 600 F.2d 600 (7th Cir. 1979), cert. denied, 48 U.S.L.W. 3780 (U.S. June 2, 1980).70. Hereinafter referred to as SPU.

NOTES AND COMMENTS

"sawed-off shotguns and other illegal weapons." 71 Upon the police en-try into the apartment, there was "an enormous burst of gunfire. '72

Two of the apartment's occupants, Black Panther leaders Fred Hamp-ton and Mark Clark, died as a result of the gunfire.73 Four of the re-maining seven occupants were wounded. 74

Edward Hanrahan had been elected Cook County State's Attorneyin November of 1968, the same month that a Black Panther Party chap-ter opened in Chicago.75 In the spring of 1969, Roy Mitchell, an FBIagent assigned to the Chicago office's Racial Matters Squad, contactedRichard Jalovec, an Assistant State's Attorney appointed and madechief of the SPU by Hanrahan. Mitchell informed Jalovec that the FBIhad an informant, William O'Neal, within the Chicago BlackPanthers.76 An FBI covert counterintelligence program designed to"neutralize" 77 a variety of political organizations, including the BlackPanther Party, was employing O'Neal to disrupt local Black Pantherprograms. 78 During the summer and fall of 1969, tension between theBlack Panthers and Chicago law enforcement agencies escalated. 79

About December 1, 1969, Jalovec received from Mitchell a de-tailed floor plan of the apartment in which Hampton and several otherBlack Panther members were living, together with a list of weaponsallegedly present in the apartment.80 Daniel Groth8 l and Jalovec metwith Hanrahan on December 3, and gave him the information on theBlack Panthers which they had received from the FBI.8 2 Jalovec toldHanrahan that they intended to obtain a search warrant for Hampton's

71. 600 F.2d at 605.72. Id73. Id74. Id75. Id at 608-10.76. Id at 609. The informant, O'Neal, was recruited by Mitchell. O'Neal joined the Chicago

chapter of the Black Panther Party as soon as it opened and soon became the local chief of secur-ity for the Panthers.

77. Id at 608. The program, called "Cointelpro" was set up in 1967, according to an FBImemorandum, to "expose, disrupt, misdirect, discredit, or otherwise neutralize the activities ofblack nationalist, hate-type organizations and groupings, their leadership, spokesmen, member-ship, and supporters, and to counter their propensity for violence and civil disorder." NATIONALLAWYERS GUILD, COUNTERINTELLIGENCE: A DOCUMENTARY LOOK AT AMERICA'S SECRET PO-

LICE 12 (3d ed. 1980) (emphasis deleted) [hereinafter referred to as COUNTERINTELLIGENCE].78. 600 F.2d at 608-09.79. Id at 610.80. Id at 611. This information may or may not have come only from O'Neal; testimony

from plaintiffs and defendants at trial was in disagreement on this point, as on most others. Id at611-12.

81. Groth was one of the Chicago police officers assigned to the SPU. He was next in com-mand after Jalovec. Id at 610.

82. Id at 611-12.

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apartment, which Jalovec and Groth then drafted. After the warrantwas issued, Jalovec approved Groth's decision to serve the warrant at4:00 a.m. Jalovec then met with Hanrahan and explained the final planfor the search of the apartment.8 3

At 4:30 a.m. on December 4, seven police officers guarded theapartment's exterior while seven more entered from the front and reardoors.84 A factual dispute exists as to the activity inside the apartment,both during and immediately after the raid.85 It is undisputed, how-ever, that after Hampton had been shot several times in the head andbody, he was dragged dead from his bedroom; Clark also died as aresult of the gunfire. 86

After the raid, the police took the four wounded occupants of theapartment to a hospital and incarcerated the three other survivors inCook County Jail.87 Later on the day of the raid, Hanrahan issued astatement to the press in which he adopted the raiders' version of theincident, although he was aware of conflicting stories. 88

On December 8, Hanrahan called a second press conference, reit-erating the raiders' account. At his request, the Chicago Tribune pub-lished an exclusive interview with the raiders on December 11. Theinterview contained photographs provided by the State's Attorney's Of-fice showing holes in walls and doors of the apartment which were rep-resented by the State's Attorney's Office as caused by shots from gunsfired by the apartment occupants.8 9 On December 12, a reenactment ofthe raid was filmed by CBS-TV. The film was edited not by CBS butby the raiders. A set was constructed in the State's Attorney's Officeand Hanrahan, Jalovec, and the raiders were present during at leastpart of the filming.90 On December 13, Hanrahan held yet anotherpress conference, in which he again confirmed the accuracy of the of-

83. Id. at 612.84. All were Chicago police officers detailed to the Cook County State's Attorney's Office.

Id at 606. See text accompanying note 70 supra.85. The apartment's surviving occupants depicted what occurred as a violent, unprovoked

attack on the apartment, and testified at trial that the police officers did not announce their pur-pose when they arrived at the apartment. The apartment occupants denied that they fired on thepolice. The survivors further claimed that they were physically and verbally abused by the policein the apartment after the raid. The police officers testified at trial that they were fired upon fromwithin the apartment, after having properly announced their purpose to the occupants while onthe apartment porch. The disagreement between the survivors' testimony and that of the police onthe facts of the raid is almost total. 600 F.2d at 613-15.

86. Id at 605, 615.87. Id at 616.88. Id89. Id90. Id at 616-17.

1038

NOTES AND COMMENTS

ficers' story, despite questions from the media.9' Throughout this pe-riod, the Chicago FBI agents kept in touch with Jalovec and Groth.92

On December 12, Hanrahan asked the Chicago Police Superinten-dent to initiate an internal police investigation. The police officersplaced in charge of the investigation were informed by their superiorsthat the inquiry would be limited in scope, designed to justify the raid-ers' use of force, and that all of the raiders' statements were to be iden-tical.93 Groth was shown the prearranged questions and answers takenfrom the official police report and then was asked to give his account ofthe raid. Jalovec and two other Assistant State's Attorneys were thenshown the questions and answers. The raiders then met with two of theAssistant State's Attorneys and were also shown the prepared materialand Groth's statement. The Assistant State's Attorneys were present atthe Internal Investigation Division 94 interviews.95

In January of 1970, a Cook County grand jury returned an indict-ment for attempted murder and aggravated battery against the sevensurvivors of the raid. Hanrahan was responsible for the presentation ofevidence to the grand jury.96

In March, Hanrahan learned that an independent ballistics experthad conducted extensive tests and discovered that the shells previouslyidentified by a Chicago Police ballistics analyst as being fired from in-side the apartment had actually been fired from police officers' weap-ons. The Chicago Crime Laboratory repeated their tests, also firing theraiders' weapons for the first time, and confirmed the independent ex-pert's findings.97 On May 4, 1970, Hanrahan informed a federal grandjury convened to investigate possible violations of the apartment oc-cupants' civil rights98 that the charges against the surviving BlackPanthers would be dropped.99

The seven survivors and the mothers of Fred Hampton and Mark

91. Id92. Id During this period, the FBI agents also requested a bonus payment for O'Neal, who

had provided them with the information given to Hanrahan's office before the raid. Id at 617;COUNTERINTELLIGENCE, supra note 77, at 44.

93. 600 F.2d at 617.94. Hereinafter referred to as liD.95. 600 F.2d at 617.96. Id at 618.97. Id at 619. Chicago Crime Laboratory personnel had incorrectly identified shells which

actually came from police officers' guns as coming from those of the apartment occupants. Noneof the police officers' guns were tested by the laboratory in its initial ballistics tests. Id at 618.

98. Id at 618.99. Id at 620. The indictments against the survivors were dropped by Hanrahan four days

after his appearance before the federal grand jury. No indictments were returned and the federalgrand jury was discharged on May 15, 1970. Id

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Clark filed four separate civil rights actions in 1970 against a number ofcity and state officials, including Hanrahan, Jalovec, the police officersinvolved in the raid, and the police officers involved in the lID investi-gation. These actions were consolidated in an amended complaint filedin the federal district court in 1972.100

The trial court dismissed the complaint against all the defendantsexcept the fourteen police officers who actually participated in the raid.Judge Perry held that the plaintiffs had failed to state a cause of actionand further held that the State's Attorneys were protected by quasi-judicial immunity.'0 The United States Court of Appeals for the Sev-enth Circuit reversed in Hampton v. City of Chicago,10 2 holding that theplaintiffs' allegations respecting the planning and execution of the raidwere sufficient to state a claim under sections 1983 and 1985(3). 103 TheSeventh Circuit further held that the alleged participation of the prose-cuting attorneys in the planning and execution of the raid was notquasi-judicial conduct, and therefore was entitled to only the qualifiedimmunity granted to police officers. °4

In December of 1974, plaintiffs amended their complaint, joining

100. Plaintiffs alleged that defendants, in planning and executing the raid and conspiring toillegally arrest, falsely imprison, and maliciously prosecute the survivors, committed acts undercolor of state law which deprived plaintiffs of the rights guaranteed by the first, fourth, fifth,eighth, ninth, thirteenth, and fourteenth amendments, and protected by 42 U.S.C. §§ 1983,1985(3), and 1986. Plaintiffs alleged that the defendants acted both individually and in conspiracywith each other to accomplish the deprivation.

101. Hampton v. City of Chicago, 339 F. Supp. 695 (N.D. 111. 1972), rev'd, 484 F.2d 602 (7thCir. 1973), cert. denied, 415 U.S. 917 (1974). Judge Perry held that, in their quasi-judicial charac-ter and function, Hanrahan and his assistants were entitled to the same common law immunity asthat given the judiciary. Further, he stated that plaintiffs did not present sufficient allegations thatthe defendants engaged in investigatory conduct other than that necessary to perform their quasi-judicial function. Judge Perry held that the plaintiffs' allegations were conclusory and lacked afactual showing of malice or lack of good faith. Id. at 701.

102. 484 F.2d 602 (7th Cir. 1973), cert. denied, 415 U.S. 917 (1974). The Seventh Circuit af-firmed the district court's dismissal of the case against the City of Chicago, Cook County, themayor, and the superintendent of police. 484 F.2d at 611. The Seventh Circuit limited its reviewto whether the plaintiffs alleged any sufficient claim for relief, and therefore did not discuss theState's Attorneys' post-raid activity. See id. at 606.

103. 42 U.S.C. § 1985(3) (1976) states, in pertinent part:If two or more persons in any State or Territory conspire .. for the purpose of depriv-ing, either directly or indirectly, any person or class of persons of the equal protection ofthe laws, or of equal privileges and immunities under the laws, . . . the party so injuredor deprived may have an action for the recovery of damages, occasioned by such injuryor deprivation, against any one or more of the conspirators.

104. 484 F.2d at 608-09. The court relied on the distinction made in Robichaud v. Ronan, 351F.2d 533 (9th Cir. 1965):

[Wihen a prosecuting attorney acts in some capacity other than his quasi-judicial capac-ity, then the reason for his immunity-integral relationship between his acts and thejudical process---ceases to exist. If he acts in the role of a policeman, then why should henot be liable, as is the policeman, if, in so acting, he has deprived the plaintiff of rights,privileges or immunities secured by the Federal Constitution and laws?

Id at 536.

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four federal defendants connected with the Chicago FBI office, includ-ing Mitchell and O'Neal. 0 5 Trial began in January of 1976 and lastedapproximately eighteen months. At the conclusion of the plaintiffs' evi-dence, Judge Perry granted the defendants' motion for a directed ver-dict for all except the seven police officers directly participating in theshooting. 0 6 The case against the seven remaining defendants was sub-mitted at its conclusion to a jury, which deadlocked. Judge Perry thendirected verdicts in favor of the remaining defendants. t0 7

Reasoning of the Court

On appeal, the Seventh Circuit reversed on most of the counts,holding that the lower court erred in directing verdicts for the defend-ants. 0 8 The Seventh Circuit held that the plaintiffs had presented suffi-cient evidence to support their claims of individual liability andconspiracy under sections 1983, 1985(3), and 1986.109 The court foundthat the plaintiffs had established causes of action for the defendants'pre-raid and post-raid conduct, as well as for the deprivation of rightswhich occurred during the raid."10 The Seventh Circuit then addressedthe absolute immunity claimed by the state and federal officials fortheir actions in connection with the raid."'I

The Seventh Circuit stated that requests from public officials forimmunity for their official wrongdoing must be treated with circum-spection. 12 The court reasoned that the claims of Hanrahan and his

105. 600 F.2d at 606.106. id The federal district court ruled that the plaintiffs had not established a prima facie

case of conspiracy or joint venture.107. ld108. Id at 608. The court held that a motion for a directed verdict must be denied if the

evidence shows that reasonable persons might draw differing conclusions therefrom, which wasthe case in Hampton.

The plaintiffs' amended complaint contained seventeen counts. Plaintiffs did not appealJudge Perry's dismissal of counts twelve and thirteen, which had charged the City of Chicago andCook County with deprivation of the civil rights of the occupants of the apartment. Id. at 607.

There were twenty-eight defendants named in one or more of the fifteen counts which plain-tiffs appealed, including three FBI agents and their informant, Hanrahan and three AssistantState's Attorneys, Groth and the twelve other police officers who participated in the raid (oneofficer had died and the cause had been dismissed as to him in 1972, id at 605 n.1), and sevendefendants connected either with the Chicago Police Crime Laboratory or the lID. Id at 606-07.

109. Id at 620-26. The court held that the state officials supplied the requisite color of statelaw, thus making the entire alleged conspiracy actionable under section 1983, including the partplayed by the federal defendants. Id. at 623. See note I supra.

110. 600 F.2d at 625-26. Plaintiffs contended that the failure of Hanrahan and Jalovec toproperly supervise the SPU officers created another cause of action under 1983. The SeventhCircuit agreed, holding that the plaintiffs' allegation of intentional or reckless disregard for theirrights in the failure to supervise comprised a cause of action. Id. at 626 & n.25.

Ill. Id at631.112. Id The court stated:

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three assistants to absolute immunity under Imbler were misplaced.Imbler, according to the Seventh Circuit, held only that a prosecutorhas absolute immunity in initiating a prosecution and presenting theState's case." l3 The Hampton court noted that the Supreme Court inImbler left standing several federal appellate court decisions which fo-cused on the nature of the prosecutor's complained of activity ratherthan his status. 114 These decisions held that certain actions by stateprosecutors are entitled only to qualified immunity, indicating thatwhen a prosecutor is performing investigative rather than advocacyfunctions, he is not entitled to absolute immunity. 115

The Seventh Circuit reiterated its ruling in Hampton v. City of Chi-cago' 16 that prosecutors have no greater claim to complete immunityfor their alleged participation in the planning and execution of a raid ofthis sort than do the police officers acting under their direction. 1'7 TheSeventh Circuit held that neither Imbler v. Pachtman,118 decided afterHampton v. City of Chicago, nor the evidence produced at trial led to adifferent decision.' 19 The court concluded that defendants' pre-raid ac-tivity was not within the meaning of advocacy as used in Imbler.

The defendants' claims to immunity for their post-raid conductpresented a more complicated question. The Seventh Circuit foundthat Hanrahan's decision to file charges, his presentation of evidence tothe grand jury, and his decision to drop the charges were all part of hisduties in initiating and presenting the State's case, and clearly were ab-solutely immune under Imbler. 20 The defendants' post-raid publicityactivity, however, which may have encouraged both pre-trial prejudiceto the plaintiffs and the alleged coverup, was held not protected by ab-

We should be hesitant to expand the scope of official activity which, from the perspectiveof a victim seeking civil redress, stands beyond the constraints of the Constitution ...For us to hold that all of the actions of the defendants in this case should be immunefrom liability as a matter of law would require us to expand radically the parameterswhich the Supreme Court has set for the doctrine of official immunity. This we areunwilling to do.

Id113. Id at 631. The Seventh Circuit also cited Briggs v. Goodwin, 569 F.2d 10 (D.C. Cir.

1977), holding that the prosecutors' immunity was limited to advocacy functions.114. 600 F.2d at 631.115. Guerro v. Mulhearn, 498 F.2d 1249, 1256 (1st Cir. 1974); Hampton v. City of Chicago,

484 F.2d 602, 608 (7th Cir. 1973), cert. denied, 415 U.S. 917 (1974); Robichaud v. Ronan, 351 F.2d533, 536-37 (9th Cir. 1965).

116. 484 F.2d 602 (7th Cir. 1973), cert. denied, 415 U.S. 917 (1974).117. 600 F.2d at 632.118. 424 U.S. 409 (1976).119. 600 F.2d at 632.120. Id The court held that any Assistant State's Attorneys who aided Hanrahan in these

phases of his post-raid activity were also absolutely immune from civil liability for their conduct.

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solute immunity. 121

The Hampton court concluded that nothing in Butz v. Econo-mou 122 or Imbler suggested that a state prosecutor's publicity activityshould be absolutely immune from civil liability. The Seventh Circuitnoted that the Supreme Court in Butz justified its extension of absoluteimmunity to "quasi-judicial" actions of administrative prosecutorspartly because of the scrutiny which a prosecutor's discretionary deci-sions receive in the adjudicatory process.123 This scrutiny was absent inthe publicity context of Hampton. 124 The Seventh Circuit likewise readImbler as not protecting a prosecutor's "publicity campaigns."' 125 Thecourt reasoned that allowing only a qualified immunity for a prosecu-tor's public relations activities would undermine neither the prosecu-tor's judgment in bringing and conducting suits nor the functioning ofthe criminal justice system as a whole. 126 Accordingly, only a qualifiedimmunity applied to Hanrahan's post-raid press conferences and to theparticipation of Hanrahan and Jalovec in the Chicago Tribune inter-view and the CBS-TV reenactment. 127

In Hampton v. City of Chicago, the Seventh Circuit had held thatthe Assistant State's Attorneys were entitled to only qualified immunityfrom liability for their participation in the Chicago Police DepartmentlID investigation. 128 After Imbler, however, the Seventh Circuit hadfound absolute immunity in Heidelberg v. Hammer129 for prosecutorswho allegedly cooperated with local police in falsifying a line-up reportand destroying police tapes of incoming phone calls in connection witha murder trial. The court found that the conduct of the AssistantState's Attorneys in Hampton during the lID investigation was essen-tially indistinguishable from that held to be absolutely immune in Hei-delberg.130 The Seventh Circuit accordingly held the Assistant State'sAttorneys to be absolutely immune from liability for their actions inconnection with the liD investigation. 131

121. Id122. 438 U.S. 478 (1978). The Seventh Circuit relied on the Rutz holding that an official

whose public relations activity allegedly violated specific statutory and constitutional guarantees isnot covered by the absolute immunity extended in Barr v. Matteo, 360 U.S. 564 (1959).

123. 600 F.2d at 633, quoting Butz v. Economou, 438 U.S. 478, 516-17 (1978).124. 600 F.2d at 633.125. Id126. Id127. Id128. Id at 609. The court said that, in substance, the plaintiffs were alleging the deliberate

preparation of perjured testimony. Id at 609 n.9.129. 577 F.2d 429, 432 (7th Cir. 1978).130. 600 F.2d at 633.131. Id

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The federal defendants in Hampton also claimed immunity fortheir actions.132 Section 1983 requires that the complained of action beperformed under color of state law.1 33 Therefore, federal officials arenot amenable to suit under section 1983 unless they conspire with aperson who provides the requisite color of state law. 34 Once plaintiffsshow a conspiracy, 35 the court must face the question of the federaldefendants' immunity.

The Seventh Circuit dismissed the federal defendants' reliance onBarr v. Matteo 36 for their claim to absolute immunity. The court reit-erated the Supreme Court's statement in Butz v. Economou 13 7 that Barrdoes not afford protection to a federal official who has exceeded anexpress statutory or constitutional limitation on his authority.1 38 Be-cause plaintiffs had presented evidence to support their allegations thatthe federal defendants violated both constitutional and statutory limita-tions on their authority, the absolute immunity granted to federal offi-cials in Barr did not apply in this case.' 39 The Seventh Circuit notedthat Butz held that federal officials should receive no more protectionfrom liability for violating an individual's civil rights than do their statecounterparts. 40 The federal defendants in this case were operating aslaw enforcement officials investigating potential wrongdoing. The Sev-enth Circuit noted that Pierson v. Ray' 4' established the rule that suchactivity by state law enforcement officials warrants only qualified im-munity. Therefore, the court held that the federal officials in this casewere entitled to only qualified immunity. 142

The test of qualified immunity on remand, the court said, shouldbe that used in Procunier v. Navarette. 43 If the constitutional rightwhich the defendants allegedly violated was clearly established at thetime of the conduct, and if the defendants knew or should have known

132. Id at 631.133. See Adickes v. Kress, 398 U.S. 144, 150 (1970). See also notes 1 and 109 supra.134. Adickes v. Kress, 398 U.S. 144, 152 (1970).135. See note 109 supra.136. 360 U.S. 564 (1959). The Supreme Court held in Barr that a federal official who, even

maliciously, issues a false and damaging publication, is absolutely immune from liability for libelif the issuance of the publication is within the parameters of his official duties.

137. 438 U.S. 478, 483-84 (1978).138. 600 F.2d at 634.139. Id140. Id In Butz, the Supreme Court held that, in the absence of congressional direction to the

contrary, there was no basis for differentiating betwen the immunities accorded state and federalofficials when sued for the same constitutional violation. See text accompanying notes 26-28supra.

141. 386 U.S. 547 (1967).142. 600 F.2d at 634.143. 434 U.S. 555, 562 (1978).

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of the right, or knew or should have known that their conduct violatedthe constitutional norm, the doctrine of qualified immunity would notthwart the recovery of damages.'" The United States Supreme Courtin Procunier stated that qualified immunity is not available where thedefendant official has acted with malicious intent to deprive the plain-tiff of a constitutional right or cause him other injury.145 A determina-tion of whether the defendants' actions are immune under this test, thecourt held, must await retrial.

In a concurring opinion, Chief Judge Fairchild, without explana-tion, advocated limiting the holding that a prosecutor is not entitled toabsolute immunity while performing "investigative" functions to thefunctions of the prosecutor defendants described in Hampton.146

Reasoning of the Dissent

In a separate opinion, Judge Pell 47 concurred with the majoritythat the directed verdict as to the officers who actually did the shootingin the raid was improper because of the issue of the possible use ofexcessive force.' 48 Judge Pell dissented, however, as to the reversal ofthe trial court's directed verdicts in favor of the remaining defendants.While Judge Pell admitted that 1mbler left open the question of abso-lute immunity for the administrative and investigative roles of the pros-ecutor, he reasoned that the Seventh Circuit should extend absoluteimmunity to cover the State's Attorneys' conduct in Hampton.14 9

Judge Pell argued that the prosecuting attorneys' involvement inpublic statements and media publicity was of a less egregious naturethan other conduct that has been found to be absolutely immune whereprosecutors were engaged directly in the prosecutorial process. Theconduct here, the dissent reasoned, was so intimately related to theprosecutorial process that absolute immunity should protect it. 150

144. 600 F.2d at 634-35.145. Id146. Id at 649 (Fairchild, J., concurring).147. In October of 1979, it was revealed that Judge Pell had been an FBI special agent from

1942 to 1945 and a member of an FBI alumni group until 1977. Chicago Sun-Times, October 19,1979, at 40. This information, while not part of Judge Pel's official biography issued by the clerkof the court, had been made public previously in Who'r Who in America. Plaintiffs moved thatJudge Pell be recused from all further proceedings and that his dissent be stricken. Chicago Law-yer, November 1979, at 18. The Chicago Lawyer reported that it is standard practice in the Sev-enth Circuit for recusal motions to be submitted to the judge being challenged. Judge Pell deniedthe motion on November 15, 1979. Respondents Brief in Opposition to Defendants' Petitions forWrits of Certiorari at 25.

148. 600 F.2d at 661 (Pen, J., dissenting in part, concurring in part).149. Id at 661-62.150. Id at 662.

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Judge Pell characterized Hanrahan's media activity as a "counter-attack" to the adverse publicity his office was receiving, done for thepurpose of avoiding the adverse effect on the criminal justice systemabout which the Supreme Court was concerned in Imbler.151

ANALYSIS

Prior to Imbler, several circuit courts of appeals had attempted todelineate the prosecutor's immunity by focusing on whether or not thechallenged activity was illegal and therefore outside the scope of theofficial's jurisdiction. 52 This approach clearly was unworkable afterImbler because the immunity granted in Imbler makes no distinctionbetween legal and illegal acts. 53 After Imbler, a court must focus onthe function the prosecutor performs in order to delineate the extent ofthe immunity. To the extent that the function is quasi-judicial-that ofan advocate initiating a prosecution or presenting the State's case-theprosecutor is absolutely immune from damages liability under section1983.154

The basis for the Supreme Court decision in Imbler was an over-riding concern for the proper functioning of the criminal justice sys-tem. 155 The Court reasoned that the public trust of the prosecutor'soffice would suffer if he were potentially liable in damages for his deci-sions. 156 This, in turn, would adversely affect the system's goal of accu-rately determining guilt or innocence. 57 Because the prosecutor'sadvocacy functions are an integral part of the judicial process, 158 theCourt found that they require absolute immunity.

Yet any grant of absolute immunity from liability frustrates thepurpose of section 1983 by limiting the state action it can reach. Con-gress intended section 1983 as a remedial statute designed to combat

151. Id152. See, e.g., Hilliard v. Williams, 516 F.2d 1344 (6th Cir. 1975), vacated, 424 U.S. 961 (1976)

(remanded for further consideration in light of 1mbler). See generally Delimiting the Scope ofProsecutorial Immunity, supra note 11, at 183-87.

153. See 424 U.S. at 430-31. Thus, after 1mbler, a prosecutor has been held to be absolutelyimmune when he allegedly conspired to bring false criminal charges, Perez v. Borchers, 567 F.2d285 (5th Cir. 1978) (per curiam); or when he allegedly instructed a witness to testify falsely, Hil-liard v. Williams, 540 F.2d 220 (6th Cir. 1976) (per curiam); or when he allegedly conspired withpolice to falsify a line-up report, Heidelberg v. Hammer, 577 F.2d 429 (7th Cir. 1978). See alsoJennings v. Shuman, 567 F.2d 1213, 1221-22 (3d Cir. 1977).

154. Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976).155. Id at 427-28.156. Id at 424.157. Id at 426.158. Id at 430.

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deprivations of civil rights. 59 Thus, the apparent intent of Congress,expressed through the absolute "every person" language of section1983,160 must be balanced against the need for official performance un-influenced by threat of vexatious ligitation. In any immunity analysis,the court must balance the deprivation to the individual who is denieda remedy against the interest of governmental efficiency. Dependingupon whether one views the least possible interference with the intentof section 1983 or the least possible interference with the legislative andjudicial systems as more desirable, the result of the balance will change.Too great a concern with efficiency will lead to limitations on liabilitywhich will leave unprotected the interests which Congress intended theCivil Rights Act of 1871 to safeguard.

Courts must consider the danger of destroying the effectiveness ofsection 1983 as a remedial statute while applying Imbler. Interpretingthe prosecutorial function too broadly would destroy section 1983 as acheck on unscrupulous prosecutors.' 6 1 Imbler should be read narrowlyto avoid this result. 162

Historically, the Seventh Circuit has been reluctant to expand thescope of absolute immunity from section 1983 liability as applied tojudges and prosecutors. 63 Continuing this policy, the Seventh Circuitin Hampton properly delineated the prosecutor's advocacy functionnarrowly, with one exception. The court also correctly refused to ex-tend absolute immunity from liability to federal officials when compa-rable state officials merited only qualified immunity from liability.

Federal Defendants

The federal defendants in Hampton, three FBI agents and theirpaid informant O'Neal, sought absolute immunity for their actions.They characterized their participation in the events leading to Hamp-ton as that of "law enforcement officials investigating potential wrong-

159. See Pierson v. Ray, 386 U.S. 547, 558-67 (1967) (Douglas, J., dissenting).160. See note I supra.161. The other procedures commonly noted as checks on unscrupulous prosecutors, such as

post-trial review and discipline by the bar, may be of limited utility to an individual wronged by aprosecutor with broad immunity.

162. The Supreme Court has stated that immunity should be granted only where it is essentialfor the conduct of the public business. Butz v. Economou, 438 U.S. 478, 507 (1978). In Ferri v.Ackerman, 100 S. Ct. 402 (1979), the Supreme Court held that federal law does not mandateabsolute immunity for court-appointed counsel in a malpractice suit brought by his former client.

163. See, e.g., Sparkman v. McFarlin, 552 F.2d 172 (7th Cir. 1977), rev'd sub norn. Stump v.Sparkman, 435 U.S. 349 (1978); Hampton v. City of Chicago, 484 F.2d 602 (7th Cir. 1973), cert.denied, 415 U.S. 917 (1974). But cf. Robinson v. Bergstrom, 579 F.2d 401 (7th Cir. 1978) (percuriam) (holding a public defender to be absolutely immune from section 1983 claims).

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doing."' 164 The plaintiffs charged the federal defendants with violatingboth constitutional and statutory limitations on their authority.' 65

Given the Supreme Court's holding in Pierson v. Ray 166 grantingonly qualified immunity to police defendants in a section 1983 suit, andthe holding in Butz v. Economout167 mandating the same degree of im-munity for federal defendants as that granted their state counterparts insection 1983 suits, the Seventh Circuit's extension of only qualified im-munity to the federal defendants in Hampton was correct. Law en-forcement officers were never granted absolute immunity at commonlaw. They perform none of the legislative, judicial, or quasi-judicialfunctions which merit absolute immunity. To grant only qualified im-munity to the local law enforcement officials involved in the raid whilegranting absolute immunity to the federal law enforcement officialswould make no sense and would create the very inequity the SupremeCourt attempted to avoid in Butz.

State Defendants

The activities for which the state defendants sought immunitywere more varied than those of the federal defendants. The SeventhCircuit in Hampton applied the functional approach to a wide varietyof prosecutorial activities. The State's Attorney's Office sought immu-nity for four separate activites: 1) the filing of charges against the sur-vivors of the raid, presentation of evidence to a grand jury, and theeventual dropping of charges; 2) the presentation of the State's Attor-ney's version of the events after the fact to the media; 3) the planning,execution, and supervision of the raid against the Black Panther Party;and, 4) the actions of the Assistant State's Attorneys involved with theliD investigation.

The Seventh Circuit correctly applied Imbler in finding absoluteimmunity for the State's Attorney's actions in charging the BlackPanthers, presenting evidence to the grand jury, and dropping thecharges. These activities are quintessential quasi-judicial functionswhich fit snugly into Imbler's definition of absolutely immune conduct.To open the prosecutor's decision to bring or drop charges to civil lia-bility, no matter what the prosecutor's motive, would indeed jeopardizethe functioning of the criminal justice system. The purpose of absoluteimmunity is as much to protect the immune official from the complica-

164. 600 F.2d at 634.165. Id166. 386 U.S. 547, 555-57 (1967).167. 438 U.S. 478 (1978).

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tions of a trial arising from his actions as it is to protect him from theoutcome of the trial. 168 If every person charged by a prosecuting attor-ney was able to sue for malicious prosecution, the system would soongrind to a halt.

While the Supreme Court in Imbler noted that the prosecutor inhis role as advocate frequently acts outside the courtroom as well as init, the Court acknowledged that at some point the prosecutor functionsas an administrator rather than as an officer of the court. 169 The Sev-enth Circuit correctly held the State's Attorney's media activities to besuch a nonadvocacy function, protected only by qualified immunity.

The State's Attorney's presentation to the public of his office's roleand point of view in a controversial event is an administrative function.There is no direct connection between a State's Attorney's press confer-ences called to defend the police activities of his subordinates and hisrole as an advocate. 70 In defending the propriety of his office's actionsand the veracity of the SPU personnel in the media, Hanrahan wasengaged in public relations. Department heads and press secretariesperform such a function daily. To attempt to claim any relationshipbetween these activities and the preparation, initiation, or prosecutionof a trial would make a mockery of the rationale enunciated in Imblerfor extending absolute immunity.' 7'

In his Hampton dissent, Judge Pell argued that the media activityof the State's Attorney should be absolutely immune because it was a"counter-attack" designed to avoid an adverse effect on the functioningof the criminal justice system. 172 But the Supreme Court in Imblermade it clear that the adverse effect they were attempting to avoidthrough immunity was the crippling of the prosecutor through un-founded litigation or fear of potential liability for decisions to prose-cute, not an adverse effect caused by bad publicity.

While the prosecuting attorney's orchestration of press conferencesin a context such as Hampton clearly is not entitled to absolute immu-nity, the pre-raid activities of the State's Attorney's Office present a

168. Forsyth v. Kleindienst, 599 F.2d 1203, 1208 (3d Cir. 1979).169. 424 U.S. at 431 n.33. For example, the State's Attorney certainly is not performing an

advocacy function when hiring or disciplining personnel.170. See, e.g., Helstoski v. Goldstein, 552 F.2d 564, 565-66 (3d Cir. 1977) (holding that delib-

erate leaks by a prosecutor of false information about plaintiff to the press would not be protectedunder 1mbler).

171. In his concurring opinion in 1mbler, Justice White points out the danger inherent inextending absolute immunity too liberally to state officials. See notes 60-64 and accompanyingtext supra.

172. 600 F.2d at 662.

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more difficult question. Arguably, some evidence gathering and inves-tigative functions of the State's Attorney are quasi-judicial becausethey are inextricably connected with the initiation and presentation ofthe State's case. 173 Yet at some point a prosecutor's activity is so farremoved from his advocacy function that it is much closer to policework, which is protected only by qualified immunity. 74 This was thecase in Hampton.

The State's Attorney's Office in Hampton was working with theFBI in conducting a long-term, far-reaching investigation into the ac-tivities of a political group, as opposed to investigating a specific crime.It is well-established that the law enforcement officials involved in sucha raid are entitled only to qualified immunity. 175 Not only would it beunjust to extend absolute immunity to the planners while extendingonly qualified immunity to the local police who followed their orders, itwould undermine the public policy behind limiting the extension ofabsolute immunity. The criminal justice system might well functionmore efficiently from an administrative point of view if carte blanchewere given to State's Attorneys and police in investigating possible"subversive" or criminal activity, but this does not appear to be whatthe framers of the Constitution or the Supreme Court in Imbler had inmind. To extend absolute immunity in this situation would give theprosecutor immunity for conduct which would not be immune if doneby other law enforcement officials. Because a court could hardly hold asubordinate liable under section 1983 for actions ordered by an im-mune superior, the potential for abuse in such a situation would besubstantial. The Seventh Circuit correctly refused to extend absoluteimmunity to the State's Attorneys for their pre-raid activities.

The Seventh Circuit in Hampton found the Assistant State's Attor-neys absolutely immune from liability for their conduct during the IIDinvestigation. This extension of absolute immunity was unwarranted

173. In Imbler v. Pachtman, 424 U.S. 409, 431 n.33 (1976), the Supreme Court noted thatperformance of a prosecutor's advocacy function may require "the obtaining, reviewing, and eval-uating of evidence." This language has reinforced speculation that the investigatory role of theprosecutor may eventually be accorded absolute immunity because of the difficulty in drawing asatisfactory line between the investigative and advocate roles. See NAHMOD, supra note 2, at 224-25.

A recent attempt to determine when a prosecuting attorney's investigatory work is part of hisadvocacy function was made by the Third Circuit in Forsyth v. Kleindienst, 599 F.2d 1203 (3dCir. 1979). In Forsyth, the Third Circuit held that, only to the extent that the securing of informa-tion is necessary to a prosecutor's decision to initiate a criminal prosecution, is it absolutely im-mune. Id at 1215. The court admitted that a factual inquiry might well be necessary todetermine in what role the challenged function was exercised.

174. Pierson v. Ray, 386 U.S. 547, 557 (1967).175. See, e.g., Butz v. Economou, 438 U.S. 478 (1978); Pierson v. Ray, 386 U.S. 547 (1967).

1050

NOTES AND COMMENTS

under Imbler. In substance, the plaintiffs alleged that the AssistantState's Attorneys deliberately prepared perjured testimony.' 76 Thisconduct would be immune under 1mbler if performed in connectionwith initiating a prosecution or presenting the State's case. 177 But, inHampton, the Assistant State's Attorneys allegedly prepared perjuredtestimony in connection with a Chicago Police Department internal in-vestigation. The investigation was undertaken to determine whetherany disciplinary action was warranted against the fourteen police of-ficers who had taken part in the raid on Hampton's apartment. 78 TheChicago police officers were to present this testimony to the ChicagoPolice Department investigators, not under oath in a courtroom at atrial.

The Seventh Circuit correctly found the conduct which the Assis-tant State's Attorneys engaged in concerning the lID investigation to beessentially indistinguishable from that engaged in by the prosecutor inHeidelberg v. Hammer.179 The context in which the conduct was per-formed, however, is distinguishable. The prosecutor in Heidelberg wasengaged in initiating and presenting the State's case in connection witha murder trial. The Assistant State's Attorneys in Hampton allegedlywere aiding and encouraging the police in lying to their superiors, not atrial judge. Even if a police department finding that disciplinary actionagainst the officers was warranted would later have discredited the po-lice officers' testimony at the Black Panthers' criminal trial, 80 the al-leged conduct is one step further away from being an integral part ofthe judicial process than was the conduct in Heidelberg. To extend ab-solute immunity to the conduct of the Assistant State's Attorneys inconnection with the IID investigation does not aid the functioning ofthe criminal justice system in accurately determining guilt or inno-cence; it merely opens another avenue for abuse. Under this extensionof immunity, a prosecutor could arrange perjury in a trial to which hehad no connection as an advocate merely to insure that a potential wit-ness in a trial he was prosecuting later would have an unblemishedrecord.

The Seventh Circuit did not explain its reasons for holding theAssistant State's Attorneys' conduct in connection with the lID investi-

176. Hampton v. City of Chicago, 484 F.2d 602, 609 n.9 (7th Cir. 1973), cer. denied, 415 U.S.917 (1974).

177. 424 U.S. 409, 431 (1976).178. 600 F.2d at 618.179. 577 F.2d 429 (7th Cir. 1978). See text accompanying notes 129-31 supra.180. At this time, the surviving occupants of the apartment were still under indictment. 600

F.2d at 616-20.

CHICAGO-KENT LAW REVIEW

gation to be absolutely immune other than noting the resemblance ofthe conduct to that which was held to be immune in Heidelberg. Thedanger of this holding is its ease of extension. It focuses on the actallegedly done rather than on either the function the prosecutor wasperforming at the time or the policy behind extending immunity in 1m-bler. Under this approach, any act done by a prosecutor would be ab-solutely immune, regardless of circumstances, if a similar act had everpreviously been found to be immune.

The Seventh Circuit's extension of absolute immunity from liabil-ity in this situation broadened the limits of the prosecutor's advocacyfunction beyond the requirements of Imbler, and was not necessary toprotect the prosecutor's discretion in initiating and presenting theState's case at trial. 18'

CONCLUSION

Section 1983 assures a remedy to individuals whose constitutionalor statutory rights are abused by persons acting under color of statelaw. The United States Supreme Court has carved out limited excep-tions to this liability, granting absolute immunity to state officials insome circumstances.

The Seventh Circuit in Hampton v. Hanrahan was faced withclaims of wholesale absolute immunity by a variety of state and federalofficials. The court exhibited a laudable concern with balancing thepolicies involved in the grant of absolute immunity to prosecutors andthe policies behind section 1983. The court's attempt to delineate theadvocacy function of the prosecutor was correct, as was its holding thatfederal law enforcement officials were entitled only to a qualified im-munity.

For the most part, the Seventh Circuit in Hampton set valid limitson absolute prosecutorial immunity, which should help circumscribeillegitimate behavior by prosecutors in the future. The court erred,however, in extending absolute immunity to the Assistant State's Attor-neys' alleged actions in connection with the lID investigation. TheSeventh Circuit's focus on the act involved rather than on function orpolicy was incorrect. Future decisions on prosecutorial immunity

181. In Wood v. Strickland, 420 U.S. 308, 320 (1975), the Supreme Court discussed the need tobalance the increased discretion of the official receiving absolute immunity against the absence ofa remedy for persons subject to intentional or otherwise inexcusable deprivations. This balance,applied to the lID situation, would mandate an extension of only qualified immunity.

NOTESAND COMMENTS 1053

should focus carefully on function and policy rather than make a su-perficial comparison of activities.

MARY ROSE STRUBBE